- Court Rules on Concurrent Filings for Religious Workers
- May 7, 2009
- Law Firm: Seyfarth Shaw LLP - Office
The U.S. District Court for the Western District of Washington recently ruled, in Gabriel Ruiz-Diaz, et al. v. United States of America , et al., that a U.S. Citizenship and Immigration Services (USCIS) regulation is “unreasonable and impermissible.” The challenged regulation, 8 CFR § 245.2(a)(2)(i)(B), permits some people to file a visa petition and an application for adjustment of status concurrently while requiring others, including religious workers, to wait until USCIS has approved the employer’s visa petition before filing their application for adjustment of status. The court found that “the Attorney General does not have discretion to choose who is eligible to apply for adjustment of status (that determination having been made by Congress), to interpret the same statutory provision in different ways depending on the classification of the applicant, or to waive a statutory requirement. Defendants may not, therefore, reject or refuse to accept plaintiffs’ applications for adjustment of status based on the regulation barring religious workers from concurrent filing.”
The court did not evaluate the constitutionality of the regulation or its validity under the Religious Freedom Restoration Act.
Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the United States as adjustment-of-status applicants while the green card process is pending. At present, the I-360 approval process is lengthy due in part to the need to conduct a site investigation on each filing. Because religious workers are ineligible to file the adjustment application until the I-360 is approved, many religious workers run out of time in R visa status and must depart the United States before they become eligible to file the adjustment application.